"We have no doubt that any mineral lands held in common, whatever the peculiarities of their structure, are subject to partition under our Acts of Assembly; for if, upon inquest, it is found they cannot be divided without prejudice to or spoiling the whole, they may be ordered to one or more of the tenants at a valuation, or to be sold and the price divided. But neither the letter nor the policy of our statutes demands partition of an estate in circumstances such as attend these hills of ore."

Coleman v. Grubb, 23, 393 (1854). Trespass by tenants in common of the ore hills against co-tenants for ore collected and carried away, which it was alleged was taken outside the limits of the Clark survey. A draught alleged to be a survey by Clark, referred to in the second agreement of August 30, 1787, was offered in evidence, showing within its limits less than the whole of the ore hills. The jury declined to determine whether this draught was the one referred to or not.

It was held that under the first agreement of August 30, 1787, the whole of the mine hills was exempted from partition and was to be held in common, and that either of the parties in interest had the right to take from within the natural boundaries of the three hills either surface or vein ore, not interfering with openings made by either of the others, and "without doing any material damage to the iron works or plantations."

2d. In the absence of any survey as referred to in the supplemental agreement of 1787, the said agreement is considered as an extension instead of a limitation of the rights of the tenants in common; and under the supplemental agreement shafts might be sunk and drifts made beyond the base of the mine hills for the purpose of mining veins found to be contained in the hills.

3d. If the terms of the agreement were doubtful, the usage of the parties during two generations in taking ores from the hills for their respective furnaces would be an important element in their construction.

4th. Neither party could maintain trespass against the other for removing surface ore from one of the hills from above its base. "Shafts might be sunk and drifts made beyond the base of the mine hills for the purpose of mining veins found to be contained in them. Veins of ore conforming in their dip to the surface of such hills could be advantageously mined only by taking position beyond the base of the hills, sinking a shaft to the vein, and then mining it upward to the outcrop. This was probably what was intended to be secured to the parties, and hence the stipulation against damage to the iron works and plantations, all of which would be found beyond the hills, and none of them upon it."

"I see no necessity for presuming that a vein was to be mined downwards to determine whether it extended beyond given limits. When iron ore is found in veins, and the angle of inclination is ascertained, it is easily determined on the surface with sufficient accuracy for practical purposes whether they extend beyond the specified limit."

Blewett v. Coleman, 40, 45 (1861). Two of the tenants in common of the ore hills leased to plaintiff, who mined copper from the hill, but outside of the alleged Clark survey as relocated by Weidle. Other tenants carried off the ore when mined, and plaintiff brought trespass.

"The Clark survey has embarrassed the parties interested in the hills long enough." "To determine the limits of a hill may in some instances be difficult, but it was not difficult to determine what plaintiff had mined on the hills."

The Clark and Weidle surveys being disregarded, "there could be no question as to right of plaintiff or his lessors to take out copper ore from the mine hills, though iron ore only was referred to and named by the parties in the original agreement, for they owned the hills and all they contained as an estate in common before the other agreements were made, and if iron ore only was referred to therein the property in the other ores remained unchanged."

Coleman v. Blewett, 43, 176 (1862). (Same as last.) In action of trespass by a tenant of two of the joint owners, against certain others of the owners, for taking and carrying away copper ore which had been mined from the base of one of the hills outside of the Clark survey as relocated by one Weidle, it was held : –

That under the agreement of August 30, 1787, the whole of the mine hills was exempted from partition, and was to be held in common, and that within the natural boundaries of the three hills either of the parties had the right to take out any ore that might be found, such a construction being according to the terms of the agreement, the usage of the parties at that date and subsequently, and equitable; That the Clark survey of the mine hills which was not proved to have been adopted by the parties to the original agreements, nor annexed to them, nor incorporated therein, nor in any manner made a part thereof, was dependent upon traditional knowledge by which it had been relocated by Surveyor Weidle, but which other surveyors could not locate, and which, as located by Weidle, did not embrace all the ore, nor all of the hills in question, must be set aside and disregarded as not the "accurate survey" by which the parties meant to hold the mine hills in common; and,

That the Clark survey being thus set aside, the plaintiff had the right to mine copper ore from the mine hills, and was entitled to recover from the defendants in the action of trespass.

Coleman's Ap., 62, 252 (1869), affirming Coleman v. Coleman, 1 Pearson, 470. Bill in equity for an account. Held, the parties to the agreement and their successors were tenants in common of the ore banks. The agreement that these should remain undivided established a permanent tenancy in common, and partition could not be had without violating the covenant which ran with the land.

The agreement provided that neither of the parties should interfere or interrupt the others at any mine holes by them opened and occupied for the purpose of raising ore. This was not a mode of providing for the enjoyment in severalty of the shares of the parties. It meant that the parties should be undisturbed in their rights as tenants in common, nor did each tenant have a mining right in the bank unlimited in extent. A man cannot have an incorporeal easement to dig ore in his own fee.

Taking ore from the surface of the earth or hollow pits is as much mining as digging it from under the ground. If a tenant in common takes more than his share of the ore taken out, he is accountable

therefor to his co-tenants; they need not wait until the whole ore is exhausted in order to ascertain his entire share, nor does it make any difference that the ore is practically inexhaustible.

They are liable to one another for ore used as well as for ore sold. The agreement of 1787, whereby these ore banks are held as a tenancy in common, unpartitionable, does not take away the right to an account. The fact that all parties continued to use these ore banks for a long period of time without demanding an account does not deprive them of that right in this case, where for over fifty years they all took the ore simply for their own use, and recently the respondents began to sell the ore, and to take out greatly increased quantities.

"Nor, as it appears to me, can it be said that these ore banks were in any sense appurtenant to the other lands comprised in the partition of 1787. The original titles to them by warrants from the proprietors of May 8, 1732, and December 2, 1737, were separate and distinct from those lands. A thing corporeal cannot properly be appended to a thing corporeal. Co. Litt. 121 b. The owners of them and the adjacent tracts might perhaps have limited the use of the ore to the supply of the furnaces erected or to be erected on the other lands then held by them in common. There is, however, not a word in the agreement of 1787 which intimates such an intention."

The tenants in common were liable to account to one another for ore taken. The act of April 25, 1850, § 24 P. L. 573, governs this case. "It is urged, however, that before any liability to account can arise, it must appear that the co-tenant upon whom the demand for an account is made has actually taken out more than his just share or proportion of the entire mass of ore in the beds or banks. It might be enough to say that the Act of Assembly makes no such provision. It applies to any case where coal, iron ore, or other mineral has been or shall be taken from the common property. It does not say or imply more than a just share or proportion. The remedy would be illusory if such a construction should prevail. No one can tell what the just share or proportion of each tenant will be until the whole mine or bank is exhausted of its entire deposit. In such a mass practically inexhaustible for generations to come it would make the one ninety-sixth part equal to the other ninety-five, and really destroy to that extent their proportionate value. Here a tenant in common exercises his undoubted right to take the common property, and he has no other means of obtaining his own just share than by taking at the same time the shares of his companions. The value of the ore in place is therefore the only just basis of account. This is the same as the value of what is called ore leave, that is, what the right to dig and take the ore is worth. Indeed all parties, as well as the master and court below, seem eventually to have settled upon this basis. But how is the value of ore leave to be ascertained? It is evident in the nature of things that it can have no general market price. It will depend necessarily upon the position and circumstances of each particular mine, as well as on the character of the ore. The value of it at the pit's mouth depends upon its quality and its proximity to the furnace where it is to be used, and on the means of transportation. In addition to this, the price of ore

leave will be influenced by the expense and risk of process of mining or taking it from its place to the pit's mouth. It is evident that the price given for ore leave in other mines or beds can afford no safe criterion, unless they should be precisely similar in all respects to the one in question. As to the Cornwall ore banks, no sale had ever been made of ore leave. No evidence was laid before the master as to what, in the opinion of the experts, ore leave in these banks would have commanded in the market. The master arrived at it by ascertaining the market value of the ore at the pit's mouth, and then deducting from that the cost of mining. We cannot see, under all the circumstances, that any more just and equitable mode could have been adopted. We do not mean to say that it would hold in any other case than the one now before the court, certainly not where the mining is expensive and hazardous. Where the tenant in common of a coal mine, for example, must with great outlay of capital construct expensive machinery, and incur all the risks of such an undertaking, the value of ore leave or coal in place could not be ascertained by so simple a calculation. The usual profits embarked in such a hazardous enterprise, with the proper allowance for personal skill and attendance, would seem to be no more than fair and reasonable deductions.

"Certainly any business man, sitting down to calculate what he ought to give for ore leave, would take all these elements into consideration. Otherwise, with his own capital and at his own risk, he would separate the ore from its natural position and place it on the surface, enhanced in value for the benefit of a stranger. We leave the rule in such a case to be determined when it arises."

Grubb's Ap., 66, 117 (1870). H. B. Grubb, owning one-sixth of the ore banks, died, and in the partition of his real estate in 1836, it, including his interest in the ore banks, became the joint property of his two sons, E. and C. They entered into a partnership in mining ore and manufacturing iron and selling it. The purchase-money for the land was to be paid out of the ore dug. The land was not conveyed to the firm, but was entered on the firm's books, and carried in the firm accounts. Held, not to have been brought into the partner, ship, and that E. and C. should account to one another, not as partners, but as tenants in common.

C. contracted to sell ore from the common property to H. for a particular furnace, to be paid for in iron from that furnace, E. declining to join. E. and R. afterwards bought H.'s furnace, so that he could not furnish iron. Held, that the contract with H. did not run with the land, and E., after the purchase, was not responsible to C. on it. Grubb v. Grubb, 74, 25 (1873). Clement and Edward owned in common "The Mount Hope Estate," which consisted of several tracts of land and one-sixth of the "Cornwall Ore Banks." Clement conveyed to Alfred his half of "The Mount Hope Estate" designating the particular tracts, "together with the right, etc., so far as the said Alfred's right under this conveyance in said Mount Hope Furnace is concerned, of the said Clement to raise, etc., for the use of said furnace, iron ore out of three certain mine hills, etc., known as the 'Cornwall Ore Banks,' etc., but for so long and such time only as said furnace can be carried on, etc., by charcoal." Held, that this con

veyance granted to Alfred a limited privilege to take ore, and did not convey the corporeal estate in the mine hills that remained in Clement.

Grubb's Ap., 90, 228 (1879). Alfred B. Grubb having acquired title to the whole of Mount Hope Furnace, claimed the right to take from the Cornwall Banks, under his deed from Clement, a full supply of ore for the furnace. Clement, contending that he was only entitled to a half supply, brought a bill in equity. The court dismissed the bill for want of jurisdiction.

"No question of waste is raised by this record. Waste is spoil or destruction done or allowed to be done to houses, woods, lands, or other corporeal hereditaments by the tenants thereof, to the prejudice of the heir, or those in reversion or remainder.

"By the act of 27th of March, 1833, P. L. 99, the provisions of the second section of the act of 2d of April, 1803, restraining waste, are extended to quarrying aud mining. But it has never been held that a person who is not a tenant in possession, but possessing a right to dig ores, is guilty of waste when he takes out more ore than his contract calls for. Nor does the case come within the rule of repeated trespass for the reason that the appellant is not a trespasser. His right to dig ore from the Cornwall Banks is not disputed. The question as to whether he has a right to a whole supply for his furnace, or only a half supply, is another matter, and has no bearing upon the question of trespass."

"The appellee is the only one of the proprietors of Cornwall who is a party to the bill. Even if they had been joined as plaintiffs, the account is a mere matter of charge for certain number of tons of ore, with no entries on the other side of the account. It was clearly the subject of an action at law, and the appropriate form of action is assumpsit."

Grubb v. Grubb, 101, 11 (1882). C. B. Grubb brought assumpsit for the one-half of the ore taken by A. B. Grubb to supply the Mount Hope Furnace.

For the clause in said deed bearing upon this subject, see Grubb v. Grubb, 74 Pa. 25, above. Held, that the defendant was entitled to the full supply. The deed should be construed most strongly against the grantor. This construction is also upheld by the circumstances surrounding this conveyance in 1845, when those who had interests in the banks took all the ore necessary for their furnaces without accounting, the banks being practically inexhaustible for the purposes of supplying furnaces as then worked.

Christy's Ap., 110, 538 (1885). In partition in the Orphan's Court, in the absence of a severance by the testator, the court has no power to order the coal and surface to be divided and appraised separately. Whether the inquest could make such division and appraisement is not decided.

Fulmer's Ap., 128, 24 (1889). A tenant in common, who is in possession of mineral lands and works the same, must, under act of April 25, 1850, P. L. 573, account to his co-tenant for his share of the minerals removed. Slate is a mineral within this act. The measure of the compensation is the value of the mineral in place, the true representative of which is the value of the royalty which could be

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